SOFTWARE
KUKA|prc – General Terms and Conditions
These General Terms apply to your purchase of KUKA|prc and account with Robots in Architecture Research (RIAR) and as such constitute a binding contract between us.
Effective Date: These Terms apply as of January 1, 2022.
Acceptance
By using KUKA|prc, you confirm your acceptance of these General Terms.
By purchasing and installation of a commercial license of KUKA|prc you acknowledge that KUKA|prc is provided as experimental software. Robots in Architecture Research will not be liable for any damages that result from using the software. The software is provided “as is”, without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non- infringement. In no event shall the authors or copyright holders be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with the software or the use or other dealings in the software.
KUKA|prc is a tool intended only to assist You with Your design, analysis, simulation, estimation, testing and other robotic activities and is not a substitute for Your professional judgment or Your own independent design, analysis, simulation, estimation, testing or other activities, including those with respect to product stress, safety and utility. It is your responsibility to determine whether the use of KUKA|prc is appropriate for the purposes you are pursuing.
Robots in Architecture Research UG is in no way responsible or liable for any results obtained from the use of KUKA|prc, including any output or expenses incurred.
You are responsible for your use of KUKA|prc (including use by your Authorized Users) and for the results obtained through KUKA|prc, including any expenses incurred. Your responsibilities include, without limitation, the determination of appropriate uses for the KUKA|prc and the selection of the KUKA|prc and other computer programs and materials to help achieve Your intended results. You are also responsible for determining the adequacy of independent procedures to test the reliability, accuracy, completeness, compliance with applicable legal requirements, and other characteristics of any results, including, without limitation, any items designed using KUKA|prc. You further acknowledge that KUKA|prc and the Results may not achieve the results you desire within your design, analysis, simulation, estimation, testing and other limitations. Everything else can be found in the general terms of use and conditions of KUKA|prc listed below.
Terms of Use
The following section details applicable Terms and conditions for the use of KUKA|prc.
By purchasing KUKA|prc you agree to be a party to this binding contract.
If you do not agree, you do not have the right to access or use KUKA|prc.
You agree to these Terms on behalf of the company or other legal entity for which you are acting (for example, as an employee or contractor) or, if there is no company or legal entity, on behalf of yourself as an individual (in either case, “You”). You represent and warrant that you have the right and authority (as well as the capacity—for example, you are of sufficient legal age) to act on behalf of and bind such entity (if any) and yourself. To use KUKA|prc for commercial purposes requires a commercial license purchased from RIAR or an approved reseller. You are responsible for anyone who obtains, accesses or uses KUKA|prc through You or Your license (including Your Authorized Users). This means that You are responsible for Your Authorized Users’ compliance with these Terms, including their use of their accounts, as though each of the Authorized Users is You. You are also responsible for the security of Your resources including but not limited to personnel and production equipment and all activity associated with Your robot. This means (among other things) that You (i) will ensure that only Your Authorized Users use KUKA|prc associated with Your account, and (ii) will secure and not share user IDs or passwords (except with authorized account administrators). If You suspect unauthorized use of Your account, please contact RIAR. You will ensure that all Your account information (including any information that You or Your Authorized Users provide in connection with Your registration for any KUKA|prc) is, and continues to be, true and complete.
You Own Your Work
You retain ownership rights to files, designs, models, data sets, images, documents or similar material created by You or Your Authorized Users
Software License
Your subscription to an KUKA|prc will be for a one-year term, unless a multi-year license is agreed to and purchased from RIAR. RIAR grants to You a nonexclusive, non-sub licensable, nontransferable license, for the period of one year, to install and use the Software (and permit Your Authorized Users to install and use the Software). The license allows for multiple computers within one location to install and use the license with up to 5 robots before requiring additional licenses. Any Software (including any Update or Upgrade) that RIAR makes available or delivers to You is licensed for a limited subscription period, not sold, and You may not transfer or assign the license, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary or as otherwise expressly permitted by RIAR in writing. RIAR may deliver “Trial Versions” with evaluation licenses. You may download, install, access or use Trial Versions only during the period and for the purpose of the trial, as expressly permitted by RIAR. (i) The subscription period for the Trial Version will be limited to 15 days, (ii) Your use will be limited to non-commercial evaluation purposes with no rights to make available or distribute the Trial Version to any third party.
Acceptable use of KUKA|prc
You will access and use (and permit access to and use of) KUKA|prc only in conformance with (and will comply with) all applicable laws. Except as expressly authorized by these Terms, including any Additional Agreement or Special Terms, or as otherwise expressly permitted in writing by RIAR, You will not:
Reproduce, modify, adapt, translate, port or create derivative works of all or any portion of any KUKA|prc, except as expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary;
Sublicense, distribute, transmit, sell, lease, rent, loan or otherwise make available all or any portion of any KUKA|prc (including any functionality of any KUKA|prc) to a third party or provide any functionality of any KUKA|prc to a third party (whether on a service bureau basis or otherwise); and
Access or use any KUKA|prc on or through the internet (other than as made available by RIAR through the internet), any wide-area network (WAN) or any other non-local network; on or through any virtual private network (VPN); or on or through any application virtualization technology, remoting virtualization technology, web-hosting, timesharing, software as a service, platform as a service, infrastructure as a service, cloud or other web-based, hosted or similar service. In addition, You will not remove any copyright, trademark, confidentiality or other proprietary rights notice from any KUKA|prc, Use the KUKA|prc in any way that is fraudulent or otherwise unlawful or tortious, or has any fraudulent or other unlawful or tortious purpose or effect; Attempt to probe, scan or test the vulnerability of any KUKA|prc or to breach or circumvent any security or authentication measures used by any KUKA|prc; Unbundle the component parts of any KUKA|prc for use separate from each other or on different electronic devices (except as may be expressly permitted in writing by RIAR)
RIAR APIs
When You subscribe to an KUKA|prc, RIAR may provide You with access to an embedded version of KUKA|prc (collectively, “APIs”). For any APIs that RIAR provides You, and subject to compliance with these Terms and all payment obligations, RIAR grants to You a nonexclusive, non-sublicensable, nontransferable license, for the period of Your subscription, to use such APIs only (i) internally in conjunction with and for Your own authorized internal use of the KUKA|prc for which the APIs were made available, and (ii) in accordance with any Documentation for the APIs. All APIs are confidential and proprietary to RIAR and may not be distributed or disclosed to any third party or used for any purpose other than as permitted by the Documentation for the APIs and the other requirements of these Terms (and any such other use is unauthorized). If You develop any applications, services, modules or components using all or any portion of the APIs (collectively, “Your Development”), You may use Your Development only for internal purposes. If You wish to use Your Development for any use other than Your internal use with Your KUKA|prc (for example, for resale to third party customers or any users other than You), You will need a separate license resale agreement.
Confidentiality
RIAR undertakes – also on behalf of its employees, contractors and consultants or companies affiliated
with and/or controlled by them in accordance with § 15 AktG (of the German Stock Corporation Act) –
to treat confidential information (whereby confidential information shall be understood to mean the terms
of this Agreement and all proprietary information and data in written, electronic or material
form) as confidential and not to disclose it to third parties or use it itself for purposes other than those
permitted under Agreement. Any Confidential Information shared by the client shall include confidential
information, trade secrets and data communicated orally to RIAR as it relates to written material marked
as confidential or otherwise identified as confidential in the course of discussions. For the avoidance of
doubt, Confidential Information includes all information and intellectual property rights disclosed to RIAR. Confidential Information specifically includes: All proprietary or competitive information
and trade secrets relating business, customers and suppliers, existing and potential customer information, existing and potential supplier information, product information, know-how, technical know-how, structures, raw materials, product samples, pricing and profitability information, financial information, product formula or specification information, data, statements, reports, inventions, algorithms, software, hardware, models, ideas, strategies, projections, methods, computer programs.
This confidentiality obligation shall not apply to Information that:
(a) are or become generally known at the time of disclosure through no fault of RIAR or without RIAR’s
conduct in violation of this Agreement and RIAR can demonstrate that;
(b) were lawfully in RIAR’s possession prior to their disclosure under this Agreement and RIAR can
demonstrate that they were;
(c) have been disclosed to RIAR by a third party authorized to do so, without restriction on use or
disclosure, and RIAR can demonstrate that;
(d) have been independently developed by RIAR and RIAR can demonstrate this;
(e) required to be disclosed by RIAR pursuant to any law, regulation or order of any competent authority
(including any regulatory or governmental authority or securities exchange), provided that the client shall,
to the extent practicable, be given reasonable advance notice of such proposed disclosure;
(f) has given the client prior written permission to disclose or transmit it to third parties
and business practices, whether in written, electronic or oral form.
RIAR Proprietary Rights
You acknowledge and agree that RIAR will have all ownership of and all rights with respect to (i) the KUKA|prc, Documentation, APIs, Metrics and other information or material provided or made available by RIAR to You and (ii) any copies of the foregoing, or any materials or other information based on, derived from or otherwise using any of the foregoing (including all rights under trade secrets, copyrights, trademarks, patents and all other intellectual property or proprietary rights relating to any of the foregoing). The structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of the KUKA|prc and the APIs constitute proprietary and confidential information of RIAR, and You will not disclose such information to third parties, or use such information for any purpose other than as required for ordinary-course access to and use of the KUKA|prc as set forth in these Terms, without RIAR’s prior written consent.You agree not to access or attempt to access the KUKA|prc by any means other than the interface RIAR provides or authorizes. In addition, You agree not to engage in any decompiling, disassembling or other reverse engineering or otherwise attempting to discover, learn or study the structure or organization, underlying algorithms or other internals, the protocols, data structures or other externals, or the source code of the KUKA|prc or APIs, except as expressly permitted under applicable law notwithstanding a contractual prohibition to the contrary. RIAR may make available or provide access to other confidential and proprietary information (either marked as such or understood to be such under the circumstances). If You receive such information, you will not disclose it to any third party, or use such information for any purpose other than as required for access to and use of the KUKA|prc as set forth in these Terms, without RIAR’s prior written consent. You have only the rights expressly granted to You under these Terms (including any Additional Agreement or Special Terms). All rights not expressly granted are reserved by RIAR and its licensors and suppliers; RIAR and its licensors and suppliers expressly disclaim (and You agree not to assert) any other rights. You agree not to take any action, or to authorize or encourage any third party to take any action (or cooperate with any third party in taking any action), inconsistent with the foregoing.
Warranty, Disclaimers, Limitations On Liability
RIAR warrants that, for any paid subscription, as of the date on which the subscribed-for KUKA|prc is made available to You and for 90 days thereafter or, if the subscription period is shorter, such shorter period (“Warranty Period”), the KUKA|prc will provide the general features and functions described in the end-user Documentation for the KUKA|prc. RIAR’s entire obligation and liability, and Your sole and exclusive remedy, for RIAR’s breach of this warranty will be for RIAR, at its option, (i) to attempt reasonably to remedy the breach or (ii) to refund amounts received for the affected subscription and terminate such subscription. You must bring any warranty claim for any KUKA|prc within its applicable Warranty Period.
Disclaimers
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THE “Limited Warranty” ABOVE, AND ANY EXPRESS WARRANTIES SET FORTH AS SUCH IN ANY ADDITIONALAGREEMENT OR SPECIAL TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (i)THE KUKA|PRC ARE PROVIDED “AS IS,” AND (ii) RIAR AND ITS LICENSORS AND SUPPLIERSMAKE, AND YOU RECEIVE, NO WARRANTIES, REPRESENTATIONS, CONDITIONS OR COMMITMENTSOF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE KUKA|PRC OR ANY OUTPUT,INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESSFOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OR OTHER WARRANTIES OR CONDITIONSIMPLIED BY STATUTE, OR ANY WARRANTIES OR CONDITIONS BASED ON A COURSE OF DEALING,USAGE OF TRADE OR INDUSTRY STANDARDS. Any statements about the KUKA|prc (including any statements about their functionality or performance) or Output, or other communications with You, that are not contained in these Terms or any Additional Agreement or Special Terms are for information purposes only and do not constitute a warranty, representation, condition or other commitment. Without limitation as to the generality of the foregoing, RIAR does not warrantor otherwise commit that (a) the KUKA|prc or Output, or the access thereto or use thereof, will be available, uninterrupted, error-free, secure, accurate, reliable or complete, (b) the KUKA|prc will meet any particular performance or availability criteria, (c) Your Content will not be lost or damaged or (d) errors will be corrected or any particular support requests will be resolved to meet Your needs. Any reference to “unlimited” access, use, storage or otherwise with respect to an KUKA|prc is subject to the technical limitations of the KUKA|prc.
Limitations on liability
Neither RIAR nor any of its licensors or suppliers will have any liability (directly or indirectly)for any incidental, special, indirect, consequential or punitive damages; loss of profits or revenue; business interruption or loss of use; cost of procurement of substitute goods or services or other cover; failure of or defects in the Output; loss, corruption or deletion of (or failure to delete) data or Your Content; or damages resulting from Force Majeure (in each case, regardless of the legal theory for seeking such damages or other liability). In addition, the aggregate liability of RIAR and its licensors and suppliers with respect to any KUKA|prc or Output thereof will in no event exceed the amount paid or payable by You for the KUKA|prc in the one-year period before the events or circumstances giving rise to the liability first occurred. The limitations on liability in these Terms will apply to the maximum extent permitted by applicable law to any damages or other liability, however caused and regardless of the theory of liability, whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise, even if RIAR has been advised of the possibility of the liability and regardless of whether the limited remedies in these Terms fail of their essential purpose. You acknowledge that the amounts payable for the KUKA|prc are based in part on and reflective of the disclaimers of warranties and limitations on liability in these Terms and that such disclaimers and limitations are an essential element of the bargain between You and RIAR.
Nothing in these Terms purports to restrict or exclude RIAR’s liability for (i) death or personal injury caused by RIAR’s willful intent or gross negligence or (ii) Your damages or losses caused by RIAR’s fraud.
Relationship to applicable law
RIAR does not seek to limit Your warranties, your other rights and remedies, or the liability of RIAR for damages or losses to the extent the limits are not permitted by applicable law (such as statutory warranties, conditions, remedies or liabilities that cannot be excluded by applicable law). Nothing in these Terms restricts the effect of warranties, the liability of RIAR for damages or losses or other terms that cannot be excluded or otherwise modified under applicable law notwithstanding a contractual restriction to the contrary. These Terms give You specific legal rights, and You may also have other legal rights, which vary from jurisdiction to jurisdiction. For example, some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to You.
Indemnity
You will indemnify and hold harmless (and, at RIAR’s request, defend) RIAR against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by RIAR by reason of any claim, suit or proceeding (“Claim”) arising out of or relating to (i) Your Content; (ii) Your (including Your Authorized Users’) use of KUKA|prc, including any Output or other results produced by such use; and (iii) Your (including Your Authorized Users’) breach of these Terms (including any Additional Agreement, any Special Terms or any other applicable terms). If You have any dispute with respect to an KUKA|prc or otherwise arising from or relating to these Terms (including any Additional Agreement, any Special Terms, the RIAR Privacy Statement or any other applicable terms), You will first seek to resolve the dispute informally with the RIAR Party as set forth above by providing notice of the dispute (including a description of the dispute and related documentation) in the manner described below for Notices and cooperating with the RIAR Party to try to address the matter amicably. Notwithstanding the foregoing, RIAR may apply for injunctive relief and other equitable remedies (or their equivalent) in any jurisdiction or forum.
Export
When You obtain, access or use an KUKA|prc, you must comply with the export control and international trade laws and regulations of the United States and of any other country whose laws apply to You or Your Content. You must not access or use any KUKA|prc from within a U.S. sanctioned location or if You appear on any U.S. government restricted parties list. You must obtain U.S. government and any other required authorization before You obtain, access or use, or allow any third party to obtain, access or use, any KUKA|prc for a U.S.-restricted end use. Restricted end uses include, but are not limited to, work on nuclear, chemical or biological weapons or on missile systems capable of delivering them. You must not upload or otherwise provide RIAR with any content or materials (including Your Content) that constitute classified information or that are subject to the International Traffic in Arms Regulations (“ITAR”) or its foreign counterparts. You must not upload or otherwise provide RIAR with any content or materials that cannot legally be transferred from Your location. You must not use any KUKA|prc to make Your Content or any other content or materials available to any country, entity or other party that cannot legally receive them under U.S. and other applicable law.
Assignment
You may not assign or otherwise transfer these Terms or Your rights or obligations under these Terms (whether by operation of law or otherwise) without RIAR’s prior written consent, and RIAR may terminate these Terms (including Your rights under these Terms) if You are acquired by, or come to be controlled by, any other person or entity (whether by acquisition of shares,
merger, or other transaction) without such written consent of RIAR. RIAR may assign or otherwise transfer these Terms (without Your consent or notice to You) as part of a reorganization, merger, sale of assets or other transaction that involves all or a portion of the KUKA|prc or related business.
No waivers
Failure to enforce or exercise any provision of these Terms is not a waiver of such provision, unless such waiver is specified in writing and signed by the party against which the waiver is asserted.
Severability
If and to the extent any provision of these Terms is held unenforceable under applicable law, (i)such provision will be deemed modified to the extent reasonably necessary to conform to applicable law but to give maximum effect to the intent of the parties set forth in these Terms, and(ii) such provision will be ineffective only as to the jurisdiction in which it is held unenforceable without affecting enforceability in any other jurisdiction.
Entire agreement
These Terms, including the Privacy Statement, any Additional Agreement and any Special Terms (which are incorporated by reference in these Terms), constitute the entire agreement between You and RIAR (and merge and supersede any prior or contemporaneous agreements, discussions, communications, representations, warranties, advertising or understandings) with respect to the subject matter hereof.
All claims in connection with this contractual relationship shall be governed exclusively by the laws
of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the
International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from and in connection with these Terms and Conditions is Aachen Germany.
